MPs and Peers have knocked back government proposals to boost surveillance powers over fears lawyer-client privilege could be jeopardised.
An all-party joint committee concluded that provisions to prevent state interception of legally privileged communications should be included in the body of the Draft Investigatory Powers Bill rather than, as suggested by the Home Office, in codes of practice that do not have the same legal force. The joint committee pointed out that codes of practice cannot be amended and so are not subject to the same level of parliamentary scrutiny as the Bill.
The draft Bill aims to bring together the numerous provisions in statute governing intrusive powers which already exist into one clear piece of legislation.
Peter Carter QC, who gave evidence to the Joint Committee on behalf of the Bar Council said: “The Joint Committee is absolutely right to recommend that protections for legal privilege must be included in the text of the Bill.
“Codes of practice have enabled the state to disregard the well-recognised right to legal privilege on too many occasions. The security services have been forced to acknowledge breaches of legal privilege in a number of embarrassing legal hearings despite their efforts to prevent disclosure of what has amounted to a disregard of our citizens’ rights; rights which the state itself invokes on its own behalf.
“Legal privilege provides the basis for a fair trial. When clients believe that communications with their lawyers are subject to surveillance, they often hold back from telling them the whole truth. It is then not possible properly to advise a client, and that limits the extent to which they, and other parties to the proceedings, can receive a fair trial.
“The only situation in which private communications between lawyer and client should be capable of being spied on is when they are made in furtherance of a criminal purpose; this is known as the iniquity exception.”
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